What You Need to Know About the Florida Probate Rules

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By Gary M. Landau, Esq.

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What You Need to Know About the Florida Probate Rules

When a relative or close friend passes away, people often have many questions about what they should do with the assets the person left behind: How are they distributed? What legal documents must be filed and when? Who pays bills owed to creditors and the ongoing expense of keeping up the person’s home?

Each of these questions is actually about probate, the legal process governing the estate of a person who has passed away. Understanding Florida probate rules is therefore important for reducing the uncertainty people feel during an already difficult, emotional time.

At the LAW OFFICE OF GARY M. LANDAU, located in Coral Springs, we regularly assist families across the state of Florida seeking help from an experienced probate attorney. You may have arrived at this blog by searching for “estate lawyers near me” or a similar query. This guide explains the regulations, timelines, and procedures laid out in Florida probate law, so you can confidently move forward in handling someone’s estate.

Understanding the Purpose of the Florida Probate Rules

Probate in Florida is a legal system designed to ensure a deceased person’s estate is distributed according to their valid will. The Florida Probate Rules, in conjunction with the Florida Probate Code, provide the structure for filing documents, opening estates, managing assets, protecting rights, distributing assets, and closing probate administrations. The rules are familiar to experienced probate lawyers, so clients don’t need to know all the details.

Still, it’s helpful to have a broad understanding of Florida’s probate rules when you initiate the process, to keep it from feeling overwhelming.

Rules govern the probate process from the moment a petition is filed with a county’s Probate Court until all of the estate assets are distributed, a process that generally takes a few months but can also last several years, depending on the size and complexity. The rules especially clarify the actions and responsibilities of the personal representative in charge of administering the estate, the probate attorney working with that person, and the court clerk who oversees all official court records.

(See What Are the Responsibilities of a Personal Representative?)

Types of Probate Administration in Florida

One of the first questions that must be addressed before a probate is initiated is what kind of probate it should be. Florida offers two primary forms of probate administration, each defined by Florida law.

Formal Administration

Formal administration applies to many probate cases in Florida. It is used when the estate’s probatable assets are higher than $75,000 and when the decedent passed away within the past two years. A formal administration is more involved than a summary administration, and it includes the appointment of a personal representative who manages the estate on behalf of all interested parties.

Summary Administration

Summary administration is available when the estate’s value is less than $75,000 or when the decedent passed away more than two years ago. (The estate’s value does not include exempt homestead property and money falling outside the probate, such as from life insurance or joint bank accounts.) Summary administration involves fewer legal documents and shorter timelines, but it still must follow Florida probate rules.

Other types of Probate in Florida

Two other types of probate in Florida are used less often, as they apply only to specific circumstances:

Ancillary Administration. This is done when out-of-state residents are having their estate probated in the state where they permanently lived, but they also owned real estate in Florida which must be separately probated.

Disposition Without Administration. This is used when an estate is so small the amount of money only covers the person’s end-of-life medical bills and funeral costs. 

Key Legal Requirements in a Florida Probate Case

Florida probate rules outline the specific legal steps that must be taken during a formal administration. Some of the steps are skipped or abbreviated for other types of probates. 

The steps in a Florida formal administration probate include:  

  1. Filing the Initial Petition

Probate begins when the attorney files a petition with the Probate Court along with the death certificate. If the person had a valid will (also known as a last will & testament), that is filed as well. Once these documents are accepted by the court, the probate is considered “opened.” 

  1. Appointment of the Personal Representative

Most wills specifically name the person who will be the Personal Representative. If the court determines that the person named is legally suitable, that person is appointed; if not, or if there is no will, state law determines who will be the PR.

The court issues the personal representative Letters of Administration, which authorizes them to act as the executor of the estate. Under the guidance of a probate attorney, the PR handles all aspects of the probate’s administration in compliance with Florida law. 

One of the PR’s first steps is to notify all beneficiaries and immediate family that the probate has begun. The PR also opens an estate account with a bank, into which all assets will be placed and from which all expenses and bequests will be paid.

(See What You Need to Know About a Notice of Administration in Florida)

3. Gathering and Protecting Estate Assets

The personal representative is next tasked with identifying, valuing, and managing assets including property, bank and brokerage accounts, business interests, and money owed to the decedent. They must safeguard these assets while probate is pending. This includes paying the mortgage, maintenance, and other upkeep costs for any real estate the person owned until it can be sold.

4. Notifying Creditors

Florida probate rules require the estate to send a notice to all known creditors, so they have a chance to file a claim against the estate. A notice to potential creditors must also be published. Working with the probate lawyer, the PR evaluates claims that arise to determine whether they are legitimate. If they are, the amount is negotiated and/or paid. If not, the estate can object to the claim according to the law and its strict timelines.

5. Paying Estate Costs and Expenses

Before beneficiaries can receive their bequests, all expenses and fees must be paid from the estate account. This includes valid creditor claims and funeral costs as well as court costs and attorney fees. If the estate is large enough, the person may also owe federal taxes. (Florida does not have a state income or estate tax.)

Under Florida rules, the personal representative also has the right to be paid reasonable compensation for the work they perform on the estate. 

6. Distribution and Closing the Estate

Once all debts and expenses are settled, the estate distributes all remaining assets to the beneficiaries, according to provisions in the will and state law. In some cases, the Probate Court may require its approval of the distribution plan.

Following this distribution, final documents are filed with the court and the estate is “closed.”

How Florida Probate Rules Protect Families

The legal rules governing Florida’s probate exist to protect heirs, beneficiaries, and creditors from unnecessary disputes. The following are some of the protections built into the system:

Protection for the Individual Handling the Estate

The personal representative is given legal authority and structured procedures to follow, which limits their liability when they act in compliance with the law.

Protection for Families and Beneficiaries

Florida law provides certain protections for spouses and minor children, so even if they are disinherited in a will they are nonetheless entitled to certain assets. All beneficiaries are also entitled to receive a copy of the will as well as accurate accounting records to ensure they get their proper distributions.

Florida law also allows for litigation to address concerns about possible undue influence or suspicious, late changes to a will or the improper transfer of money out of an account. 

Protection for Creditors

Creditors must follow required timetables and procedures, and when they do so they are able to get paid what they are owed. (Often, creditor claims can be negotiated.) 

When Families in Florida Need Help Regarding Probate

Families in Coral Springs, Boca Raton, and across South Florida and the state can find themselves searching for a probate attorney because they don’t know who to turn to when contemplating the rules, legal documents, forms, deadlines, and filings required. They may also have questions about handling claims against the estate, transferring property, and the steps required for the Probate Court process.

Working with an experienced probate lawyer helps families understand what steps must be completed, which documents filed, and how to move the probate process forward while protecting the interests of all beneficiaries.

At the LAW OFFICE OF GARY M. LANDAU, our probate lawyer provides guidance in probate administration, estate planning, and related practice areas. We also help families evaluate whether summary administration is possible, which may save time and money. The law office also helps people draft their wills, to make the probate process easier for their own heirs.

Important Factors That May Affect a Florida Probate Case

There are several situations that can complicate the experience and timeline of a Florida probate.

Real Estate Property in Multiple States

Just as people residing in other states must do an ancillary administration for their Florida real estate property, so too must Florida residents with real property located outside the state. This adds time and money beyond what would be required if all property were in Florida.  

Business Interests

If the person owned a business, whether alone or via partnerships or associations, financial valuations and additional legal procedures may be required.

Creditor Claims and Taxes

If the person had numerous unpaid bills, especially back taxes, reviewing and resolving them may take a while. Very large estates, valued at over $15 million per individual, are also subject to federal estate taxes, which requires the hiring of an accountant.

Recordkeeping Requirements

Probate requires detailed accounting records and supporting documents of assets and heirs. If they are difficult to gather–or if one or more beneficiaries cannot be identified or located–delays may ensue.

Family Disagreements or Questions About the Will

When beneficiaries or potential beneficiaries worry there was undue influence when the person drafted their will, or when legal documents are missing or believed to be fraudulent, litigation to resolve these matters can cause substantial costs and delays. 

The Benefits of Working With an Experienced Probate Lawyer

Florida does not require estates to have an attorney, but the majority of people find benefit in working with a probate lawyer. Experienced attorneys are familiar with the rules, procedures for legal filings and form submissions, and deadlines that regular people are not expected to know.

A probate attorney helps by:

      • Counseling clients about what to expect during the entire process
      • Preparing and filing each of the required documents
      • Advising the personal representative about their duties and next steps per Florida law
      • Alerting creditors and helping to evaluate their claims
      • Corresponding with the court on behalf of the family, including attending court hearings when judges require them
      • Offering guidance in situations involving guardianship, divorce, business interests, or the prior death of a named PR or beneficiary
      • Helping the personal representative distribute the assets
      • Answering any questions that arise during the process.

Families searching for “estate lawyers near me” often want reassurance that the hard-earned assets of their loved one will be handled with care, while protecting the rights of all interested parties. The Law Office of Gary M. Landau is known for its clear guidance and ready availability. 

Speak With the LAW OFFICE OF GARY M. LANDAU

If you are ready to begin a probate in Coral Springs or throughout Florida, the LAW OFFICE OF GARY M. LANDAU is here to assist you. Whether you have questions about the probate procedures, transferring property, dealing with creditor claims, or the responsibilities of the personal representative, our firm is here to help.

With more than 25 years of experience in our practice areas and countless satisfied clients, attorney Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate title and closing needs in Coral Springs, Parkland, Boca Raton, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, want to change your deed, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We happily work with our clients in person, over the phone, or on Zoom.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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